Penalty - Employment Relations Act 2000
Amey v Komene & Anor
27 Nov 2008, J Crichton, CA 178/08, (5 pages)
PRACTICE AND PROCEDURE - Identity of employer - Application to reopen personal grievance - No appearance for respondent - When employment relationship ended, applicant raised personal grievance and notified employer of outstanding wages - Parties reached full and final settlement of matters between them at mediation, with applicant not pursuing personal grievance and respondent paying outstanding wages by instalments - Respondent failed to fully honour settlement agreement - Applicant alleged respondents misrepresented themselves in mediated settlement as limited liability company, Sharvai Enterprises Limited (“S”), when in fact traded as partnership - Authority found appeared was never company incorporated as S - Insofar as operators of S represented had benefits of limited liability operators in breach of Companies Act 1993 - Authority satisfied applicant employed by respondents, not S - Applicant sought to set aside mediated settlement, given breaches by respondents, and reintroduce personal grievance claim - Authority satisfied applicant prevented from doing so by s149(3) Employment Relations Act 2000 - Application dismissed - ARREARS OF WAGES - Applicant still owed outstanding wages and other monies pursuant to mediated settlement - Respondents to pay outstanding wages - PENALTY - Applicant settled rather than pursuing personal grievance claim, facilitating prompt resolution - Respondent flagrantly breached settlement agreement and applicant now prevented from reopening personal grievance - Authority satisfied appropriate case to award penalty - $4,000 penalty awarded, payable to applicant - COSTS - Costs to lie where they fall - Truck driver
Result:
Application dismissed (Reopening of personal grievance) ; Arrears of wages ($1,777.84) ; Application granted (Penalty)($4,000)(payable to applicant) ; Costs to lie where they fall
Borrell-Johnson v UBP Ltd
18 Dec 2007, J Scott, AA 399/07, (9 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant skilled employee but observance of hygiene regulations very poor - Received numerous warnings for dirty gear, including final warning - Respondent ignored next failure to pass inspection, but dismissed when also failed following week - Applicant alleged no opportunity to discuss matter - Also claimed gear met required standard - Credibility finding in favour of respondent - Applicant had cavalier attitude to strict hygiene requirements of job - Respondent entitled to rely on earlier warnings - Authority satisfied applicant failed inspection, no further investigation required other than to put concerns to applicant - Process not perfect but essence of fair procedure present - Although decision to dismiss effectively made before applicant spoken to, fair and reasonable employer would have taken same approach in circumstances - Also, clear respondent did not want to dismiss applicant and had looked for ways around its own rules to give him another chance - Had applicant offered anything in mitigation respondent would have considered it - Dismissal justified - PENALTY - Applicant sought penalty for respondent’s refusal to attend mediation - Employment agreement referred to mediation but not mandatory - Respondent also failed to comply with direction to mediation from Authority but no penalty provided for in Employment Relations Act 2000 for breach of direction to mediation - Matter to be considered in costs setting - Boner
Result:
Application dismissed ; Costs reserved
Herdman v Autoglas-Stieger Ltd
19 Mar 2008, H Doyle, CA 28/08, (13 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Applicant’s unjustified disadvantage and dismissal claims based on same facts - Authority did not treat them as separate claims with respect to remedies - Respondent claimed applicant resigned or alternatively dismissal justified by applicant’s refusal to carry out lawful instruction and other actions - Applicant damaged client's car - Respondent alleged applicant had caused minor damage to clients’ cars on previous occasions - Respondent claimed told applicant would have to start paying for damage if incidents continued - Applicant disputed discussion took place - Respondent deducted money from applicant's wages to pay for damage - During discussion about deductions and applicant's potential liability for future incidents respondent received callout - Respondent requested applicant go to callout - Applicant wished to resolve wage deduction issue first - Parties got into an argument and as applicant left office, slammed door and broke glass - Applicant allegedly told co-worker had quit, and co-worker informed respondent - Parties in dispute about events after meeting - Applicant believed dismissed and sought outstanding wages - Respondent believed applicant resigned - Authority found applicant did not intend to resign and respondent had not intended to dismiss applicant during argument - Found was heated situation where not safe for respondent to rely on applicant’s words or actions that resigned - Not sufficient for respondent to rely on second hand information from co-worker - Respondent should have made own inquiries and sought to clarify state of relationship - By maintaining applicant had resigned respondent prevented continuation of relationship, which amounted to dismissal - Respondent’s argument dismissal would have been justified rejected - Authority not persuaded dismissal would have been inevitable - Dismissal unjustified - Remedies - Contributory conduct 25 percent - Applicant’s behaviour not constructive - Authority found only loss of wages attributable to respondent were from time of dismissal until applicant received sickness benefit - Quantum of lost wages to be determined by parties - To assist parties Authority determined applicant's gross weekly wage - Applicant diagnosed with depression, humiliated by experience, withdrew socially and experienced financial hardship - Award of $6,000 compensation appropriate, reduced to $4,500 for contribution - PENALTY - No written employment agreement - Subsequent problems could have been lessened had agreement been provided - Moderate penalty appropriate - Penalty of $200 awarded, payable to Crown - Windscreen repairer
Result:
Application granted ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($6,000 reduced to $4,500) ; Penalty ($200)(Payable to Crown) ; Costs reserved
Te Tuhi v Silver Fern Farms Ltd
17 Nov 2008, M Urlich, AA 392/08, (5 pages)
PENALTY - Applicant sought penalty under s149(4) Employment Relations Act 2000 (“ERA”) for respondent’s failure to comply with record of settlement (“settlement”) - Applicant alleged breach of settlement flagrant, and penalty warranted - Respondent argued open to it to question settlement and delay payment until matter clarified or, alternatively, argued common mistake - Authority found party to record of settlement cannot select which clauses to comply with - Settlement either valid and binding or not - Evidence of common mistake must be clear and convincing - No such evidence in present case - Issue concerned interpretation of settlement - Authority satisfied settlement valid for purposes of s149 ERA - Authority found respondent breached settlement - Respondent did not make reasonable efforts to contact applicant to advise of non-compliance - Applicant required to raise issue with respondent, which was stressful and embarrassing - Respondent did not comply until application for compliance filed with Authority - Penalty warranted - Modest penalty appropriate as respondent did not breach all obligations and attempts to clarify agreement sincere - Awarded penalty of $500, payable to applicant
Result:
Application granted ; Penalty ($500)(Payable to applicant) ; Costs reserved
